“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Monday, January 27, 2014

Just an hour or so ago, the Indiana House voted 52-43 to remove the second sentence of HJR-3, the amendment that would write into the constitution the statutory definition of marriage as being between a man and a woman. The stricken second sentence went beyond that outlawing the extension of the benefits of marriage to people who were not married. Thus, what I referred to as marriage lite, things such as civil unions, would also be prohibited.

The effect of writing the language into the Constitution would prevent state court judges from finding that Indiana's definition of marriage violates the state constitution. (It, however, wouldn't prevent judges from finding that it violates the federal constitution.) Probably more importantly, it would make it considerably harder to change the definition of marriage should the political winds change as they are changing. Without the constitutional amendment, a simple bill could change the definition and Indiana would legalize same sex marriage. Without the amendment that process could take years.

Since the Indiana Constitution requires that proposed constitutional amendments pass two separately-elected General Assemblies in identical forms, a change in that amendment would mean the process would have to start over and it could not be before the voters for ratification until 2016 at the earliest.

The second sentence can still be amended back into HJR-3 in the Senate or in conference committee. That would still make it eligible for a final vote in 2014. But the problem is the 42 votes for the amendment, as is, suggests a significant political weakness in support for the amendment. While much of the blame for that weakening is being placed on the offensive second sentence, I don't think many House Republicans like the first sentence either. Those Republicans saw an issue that was politically explosive and they didn't want it driving Democratic turnout in the 2014 general elections. More on that later.

At the end of the day, proponents of HJR-3 had a very difficult intellectual argument to make. It was always fuzzy how allowing same sex couples to marry endangered traditional marriage or those marriages in which the marital covenant is blessed by the church. The argument that marriage is about procreation ignores the numerous people who can't have children because of physical issues or age yet enter into marriage. The importance of marriage as an institution that encourages life-long partnerships, monogamy and personal and legal commitments, are arguments that actually support extending the institution to same sex couples.

My greatest fear from this debate is that my christian conservative friends will someday, perhaps not too far in the future, be looked upon as those people in the 1950s and 1960s who fought to preserve miscegenation laws that prohibited blacks and whites from marrying. They are on the wrong side of history on this one. There are better battles to be fought. For example, religious freedom is under full scale assault from the Obama administration and liberal Democrats who believe government has the right to mandate that people put aside their deeply-held, religious beliefs to carry out government mandates. Never mind that there is a First Amendment which says government must accomodate religous beliefs in the laws it enacts.

In the end, if HJR-3 dies, the same sex marriage activists whose incredibly organized activism will have ironically done Republican 2014 candidates a huge favor. They will have removed an issue from the ballot which would have driven Democratic-leaning turnout and caused many GOP candidates to lose. While Governor Pence will not be a candidate in 2014, he can still breathe a sigh of relief in being able to keep his christian conservative friends happy without having to deal with the consequences of the same sex marriage political dynamite sinking his political future.

The irony of politics is that so often when you think you've won a great battle, you find out later that that success actually sewed the seeds of your defeat in the next election. The folks who organized so well to defeat HJR-3 are about to learn that painful political lesson.

5 comments:

A guest on this morning's Garrison Show seemed to make the point that the stricken language would not have affected partner benefits extended by employers; but serve to reinforce the common language definition of marriage.

If, if, if, if, this particular guest's point is rooted in Constitutional scholarship (doesn't infringe on rights to contract or associate); many would be fine with the Senate reinserting that language for 2014 consideration.

Regarding paragraph 1, I think that's probably right though a court could go a different way I suppose. Personally I really, really hate the idea of civil unions and partnership benefits. Those kind of marriage lite provisions do undermine traditional marriages. Of course if a private company were offering partnership benefits, I don't think government should get in its way.

If we "assume" there's no undermining of common language when one word is substituted for another, then you can certainly assume that yesterday's, straights are gay & that "traditional" marriage is a same sects concept...

I admit having not paid careful attention to the progress of HJR-3, other than having send emails to the local representative and senator in opposition to a gay marriage ban.

Yesterday Rep. Huston voted nay, in the minority. Does that mean that he is opposed to HJR-3 in toto, or that he opposes a bill that allows for civil unions? He’s in Fishers, so I can’t imagine him supporting marital freedom.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.